(Uday Umesh Lalit and Vineet Saran, JJ.)
ABCD ___________________________________________ Petitioner;
v.
Union of India and Others _________________________ Respondent(s).
Writ Petition (Criminal) No. 191/2018, decided on September 11, 2019
The Order of the court was delivered by
Order
1. After due investigation, Charge-sheet has been filed in the present case.
2. It must be noted that the episode in question, according to the complainant, had occurred sometime in January 2018.
3. According to the accused, he was having two Mobile Phones, i.e., (i) which was private, and, (ii) which was given to him in his official capacity. His private Mobile Phone had been damaged during the course of operations sometime in December 2018 and said Mobile Phone was surrendered by the accused in February 2019, which finds reflection in Para 19 of the Charge-sheet. According to said Para 19, this Mobile Phone could not be turned on.
4. Pursuant to the order dated 23.07.2019 passed by this Court, the second Mobile Phone of the accused was taken in custody by the Investigating machinery on 31.07.2019. This part is dealt with in Para 23 of the Charge-sheet. According to said Paragraph, the data of the Mobile Phone could be extracted with the help of CyPad (Cyber Cell, Delhi Police) and has been analysed. However, a particular photograph, copy of which was available with the victim in her Mobile Phone, could not be located in the second Mobile Phone of the accused.
5. According to said paragraph, the attempts were being made to extract the Metadata for the Expert’s Opinion. However, the Charge-sheet reveals that the photograph given by the victim from her Mobile Phone has been analysed and the location and the timing of the photograph in question has also been considered in the Charge-sheet.
6. Soon after the recovery of the first Mobile Phone in February 2019, according to the Investigating Officer, who is present in the Court, the matter was referred to FSL. However, the Report of the FSL indicated that they were unable to open the Mobile Phone. This Report was received sometime in April 2019. In June 2019, an application was made to the concerned Court to engage the services of Apple Service Centre to enable them to make efforts to switch on the Mobile Phone.
7. It was submitted by Ms. Aishwarya Bhati, learned Senior Advocate that the investigation in connection with recovery of data from these two phones was not proper and there was no co-operation from the accused.
8. It must be stated that the Charge-sheet does not suggest that because of any lack of cooperation on part of the accused in not providing or supplying the Code Number, the Mobile Phone could not be operated or opened. It must also be stated that Ms. Sonia Mathur, learned Senior Advocate for the accused has very fairly supplied the Code Number (No. 220192) and stated that this Code Number applies to both the Mobile Phones, with the help of which said Mobile Phones could normally be opened.
9. Be that as it may, going by paragraphs 19, the Mobile Phone has now been sent to Apple Service Centre.
10. According to the victim, the Mobile Phone used by the then Investigating Officer also carried certain relevant data, which if retrieved may help in unfolding the truth. According to the learned counsel for the Investigating Agency, said Mobile Phone has also been sent to the FSL for analysis and investigation.
11. In the circumstances, we pass following directions:
a. We direct the Apple Service Centre as well as the FSL Agency to make every possible effort to restart the Phone and retrieve the data from the first Mobile Phone.
Let the entire exercise be undertaken within four weeks from today, under the personal supervision of ACP Shweta Singh Chauhan (Heading SIT).
b) In case no headway is made even through the intervention of the Apple Service Centre, let the matter be referred to CBI CFSL. In such eventuality, CBI CFSL shall complete the process of investigation and analysis within four weeks of the reference.
c) Attempts to extract the Metadata of second Mobile Phone as stated in para 23 of the Charge-sheet shall also be taken to logical conclusion as early as possible and preferably within four weeks from today.
d) The Mobile Phone belonging to the then Investigating Officer shall also be subjected to analysis and the report in that behalf shall be submitted by the FSL within four weeks from today.
12. List this matter on 24.10.2019.
13. Till further orders, interim orders to continue.
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